In 1979, the Supreme Court decided police don’t need a search warrant to track the phone numbers called by a suspect under investigation. The Court said the police action didn’t constitute a “search” as that word is used in the Fourth Amendment. The decision was 5-4.
It seems likely that within the next year the Court will be asked to revisit that decision, since it forms the legal basis of one of the NSA surveillance programs revealed by Edward Snowden. Because one person’s call records can be obtained without a warrant, NSA presumes they can monitor and maintain everyone’s records, all at once, now and for all time. As Rep. Alan Grayson (D-FL) said on the House floor, “That is a farce.”
“Nobody is listening to your phone calls,” said President Obama, but telephone “metadata” can be even more revealing than what we say. Security expert Susan Landau tells us, “It’s much more intrusive than content … who you call, and who they call. If you can track that, you know exactly what is happening – you don’t need the content.”
Here’s the Fourth Amendment:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
When the Supreme Court ponders these 54 words, they generally focus on “unreasonable” and “searches” and “warrants” and “probable cause”. They analyze details and definitions and precedents, count angels on pinheads. But in the upcoming case, there is only one question for the Court: Did the people who wrote those words believe they were authorizing the government to keep track of “exactly what’s happening”, day by day, in the lives of the citizens?
I don’t think so.